On the eve of Senate confirmation hearings for Secretary of State-designate Alexander M. Haig Jr., members of the Foreign Relations Committee remain at odds about whether to insist on access to records and tapes of former presidents that relate to Haig's years in the Nixon White House.
But if President Carter has his way the senators may get a big chunk of the disputed materials, whether or not they want them, according to one White House official.
Carter is leaning toward releasing certain of the materials over the objection of former president Nixon and letting Nixon take him to court, the source said.
Yesterday, Sen. Alan Cranston (D-Calif), a committee member and the assistant minority leader in the Senate, urged the committee's Republican majority to join with those Democrats who are seeking the materials.
Cranston, in a Capitol Hill news conference, claimed this would be "the best way to dispel any suspicion that anything in Gen. Haig's record has been overlooked or ignored either deliberately or through inadvertence."
Among Republican panel members, who met for much of the day yesterday mapping strategy for the hearings, sources said there was still no appetite for joining in any bipartisan effort to get Nixon to withdraw his objections to committee review of the materials. The Republicans have stressed their determination to get Haig and the rest of President-elect Ronald Reagan's Cabinet confirmed by Inauguration Day, Jan. 20.
The ranking minority member of the committee, Sen. Claiborne Pell (D-R.I.), has written to President Carter and to Nixon's lawyer requesting material that could relate to Haig's role in some of the more controversial Nixon-era undertakings.
Nixon's lawyer, Herbert J. Miller, >HEARINGS, From A1> earlier this week threatened court action to prevent a search through the Nixon tapes and documents stored in the National Archives. Yesterday, Cranston accused the former president of playing an "obstructionist's role" in threatening to block access.
Miller, in a private letter, has also asked Pell to withdraw his request, The Washington Post has learned.
In a separate development yesterday, the National Archives sent listings of tapes and documents to Miller with a request that Nixon waive two five-day periods for review and notification of possible legal action. After that, the material could then be forwarded to the White House for a further decision on release.
According to Steven Garfinkel, counsel to the archives, Miller made no commitment to waive his objections and said he needed time to look over the listings.
Much of the material relating to Haig had already been indexed in the archives before it was requested by Congress. Tapes of Nixon's presidential conversation and other documents from that era could be produced for the committee "in a relatively short time," Garfinkel said in a telephone interview, if Nixon, Carter and Haig give their approval. Haig has already said he has no objection to any release of material since he is confident it contains nothing incriminating.
The tapes could be quickly identified and made available for the committee to listen to, but it takes 200 hours of transcribing time for one hour of tape if the committee wants written transcripts, he said.
Cranston yesterday also said he hoped the recent appointment of former Republican senator from New York, Jacob K. Javis, as special counsel to the Republicans for the hearings might contribute to more bipartisan approach in a request for materials. Senate Democratic sources acknowledge, however, that there are diffrences of opinion among the eight Democratic members of th panel about how far to press to case for access to documents in the archives.
Cranton called for a thorough bipartisan inquiry into Haig's record as well as his qualifications for the job and prospective performance in it. He said it was important not to leave any major questions about Haig unresolved, as occurred, for example, in the case of President Carter's first budget director, Bert Lance, who eventually had to leave his post.
Cranston said information about Haig's involvement in such things as Nixon's Watergate defense, wiretapping and Indochina war advice was revelant because it might shed light on Haig's judgment and the principles that would guide him in similar situations in the future.
The senator also hinted that if the committee Democrats believe there wre serious questions about Haig and were outvoted in the committee, he might undertake a filibuster on the Senate floor to delay action on the confirmation. Aides later said this was not meant to be a threat and something they thought was highly unlikely.
Thus far, the archives has prepared a 64-page inventory of Nixon-era documents listing roughly 2,000 files with nearly 70,000 pages in them that, by virtue of the title of the file, could conceivably relate to the broad subjects raised by Pell, Garfinkel says. However, he estimates that only a small portion of this would probably be relevant to the committee's hearings on Haig. Another 57-page inventory lists roughly 800 taped conversations of which only certain segments are also apt to be relevant.
Officials at the archives claim this material can be sorted relatively quickly but only if Pell narrows his request to specific items described in the inventories. But for Pell to see the inventory in order to narrow it, the archives needs the approval of Nixon, Carter and Haig.
If a narrowed request were made, then the Carter White House would first have to determine what in its judgement was relevant to the Haig hearings and the White House would have to give Nixon another 10 days to object or go to court if he wished to plead either executive privilege or invasion of privacy.
Ironically, President Carter, according to one administration source, was prepared to do everything he could to release the Nixon documents and tapes but the Democratic minority may have inadvertently fouled its strategy by including in the request for information documents relating to Haig's advice on Iran while NATO commander in Europe for Carter. Carter, however, is expected to be advised to assert executive privilege on those documents, which would make it "politically unpalatable" for him to release Nixon-era material.
However, another White House official said Carter might withhold the Iran material, since it could endanger the 52 hostages, while authorizing the release of the disputed Nixon records since they were nearly a decade old and did not deal with discussions pursuant to the lawful conduct of the presidency.
If Carter should decide to release material and Nixon went to court to attempt to enjoin the release, the former president would be unlikely to succeed, the official said. Becuase any materials released would probably deal with discussions of the type the courts have previously determined are not privileged, an injunction probably would be denied and the committee would get the materials immediately, the official predicted.
Timing remains crucial since Nixon or the courts could delay the question until Reagan becomes president on Jan. 20. It is then unclear whether Reagan could rescind Carter's decision to release the material to the committee. Reagan has previously said he would release such tapes and documents.
In the next week or so, Carter will probably release certain records of the Watergate special prosecutor, the official said.
One such document, according to another source, is an internal memo discussing Haig's role in Nixon's defense while White House chief of staff. The document is said to be inconclusive in its discussion of whether any of Haig's actions were illegal, but the document could cause Haig some difficulty in questioning before the committee.
Other documents are said to pertain to Haig's appearance before a Watergate grand jury over his involvement in illegal wiretapping, although Haig's grand jury testimony is apparently exempt from release to a congressional committee.
The Carter administration apparently feels that Nixon can do nothing to prevent the release of the special prosecutor materials.
In any case, if Carter is able to release any of the materials in the next few weeks, the committee will be under pressure to postpone Haig's confirmation until a review can be conducted.
Republicans yesterday were also said to have circulated a briefing book challenging Carter's right to release such material about the Nixon period to the committee even if Nixon had no objections. They claimed that any such White House action would be a circumvention of the unique statute that limits access to Nixon's records. That statute does not specifically provide for legislative branch access.
Virtually all of the committee's Democrats have indicated that without new documentation, it will be difficult to probe into Haig's past beyond that which is already on the public record.